NOTION FOR RELINQUISHMENT or JURISpICTION FOR CONSIDERATION OF NEW IVIPENCE

COMES NOW, WAYNETOMPKINS, the Appellant in the above-

entitled matters by and through undersigned counsel and respectfully requests that this Court relinquish jurisdiction to the circuit court so that he can present a Rule 3.851 motion premised upon the recent disclosure by the State of a sworn statement taken from Kenneth Turco on October 28, 2008. In this regard, Mr. Tompkin states:

1. Kenneth Turco was called by the State at Mr. Tompkins' 1985 trial to testify as its last ~itness. At that time, Mr. Turco testified that he had been placed in a jail cell with Mr, 2008-11-0308;48 McClain &McDermott. 954564-5412 » P2/22

Tompkins in June of 1985 for a second time (R. 306). While incarcerated with Mr. Tompkins in "[t)he first part of middle part of June" (R. 307), Mr. Turco had a conversation with Mr. Tompkins regarding the murder charge pending against him. After Mr. Turco talked to Mr. Tompkins about his own case, he asked Mr. Tompkins "specifically what had happened the day Lisa DeCarr disappearedU (R. 308). According to Mr. Turco, Mr. Tompkins

responded by saying "1 believe I can trust you because you have done a lot of time and I don't think you would snitch" (R. 308).

2. Mr. Turco thereupon testified that Mr. Tompkins confessed to strangling Lisa DeCarr after she rebuffed his sexual advances (R. 309). According to Mr. Turco, Mr. Tompkins indicated that he buried the body under the house. Thereupon, Mr. Turco had the following exchange with Michael Benito, the prosecuting attorney:

Q. Did he tell you he buried anything else under the house of hers?

A. Yes. He said he buried some clothing to make it look like she ran away.

Q. Anything else? Do you specifically ~ec.11 the pock.t.book?

A. Yes, sir. It was a pair of jeans, a sweatshirt or a blouse, I can't remember exactly, but it was a top, and he did say. pocket book for Bure.

Q. Did he tell you where he had buried the pocketbook, the jeans and blouse?

A. No, he didn't sir.

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(R. 310) (emphasis added). During cross-examination, the

following exchanged occurred with Mr. Tompkins' counsel:

I

Q. He told you that not only did he kill her but he gave you the specifics about clothing and things of that nature that he also buried?

A. Yes, he did, sir.

Q. Those would be information, matters about clothing and matters about details you would expect to find in police reports, would you not, and depositions?

A. I have no idea, sir.

(R. 316).

3. In his closing argument, the prosecutor made the

pocketbook an important feature:

It was enough time for him to plan his coverup, not enough time. He made mistakes, and the mistakes which have left a trail directly to him. And one big mistake, listen to this, one big mistake, he got rid of the pocketbook just like he told Turco he did.

Recall Barbara, when she searched Lisa's belongings that evening, did not find her pocketbook. We nev.~ have found the pocketbook. But what was not missing? Her wallet. Her wallet. Remember Barbara's testimony. Her wallet was there but not her pocketbook. In his haste, in his hurrying to cover up this crime, he forgot to put the wallet in the pocketbook.

He panicked after killing her, just like he told Tureo he did, and h. qrabbed the pocketbook, grabbed some clothes, buried them. We don't know wheLe. He said he buried them, but thinking the wallet was in the pocketbook, he buried them but the wallet wasn't in the pocketbook.

No young girl is going to run away and take her pocketbook but leave her wallet. And, besides that, as already mentioned, no young girl is going to run away

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in her bathrobe and her pajama top.

Use your common sense. She did not run away.

The defendant told Barbara DeCarr, "Jeans and a blouse and her pocke~ook, that's what I saw her the last time wearing and carrying."

(R. 355~56) (emphasis added). Clearly, the prosecutor used the pocketbook as an essential piece of evidence that pUlled his case

together and rebutted any contention by the defense that Lisa DeCarr had in fact run away as Mrs. DeCarr reported to the police on March 24, 1983.

4. In the sworn statement from Kenneth Turco that was

taken on October 28, 2008, by the State and disclosed to Mr.

Tompkins' counsel on October 30, 2008, Mr, Turco explained that

the prosecutor instructed him to add the pocketbook to his

testimony at Mr. Tompkins' trial:

Well, Michael Bonito (sic] at the time of my -prior to the testimony, and naturally we met at the Hillsborough County jail, went into a little room and as I was telling him what happened he told me --he said --he told me, he said don't forget the purse. She was buried with a purse. Make sure you add that in your testimony, and I did.

(Turco Sworn Statement of October 28, 2008, at 5). Later, Mr.

Turco explained:

Q And this thing about the purse in your deposition, you said that you mentioned a pocketbook or purse of something to that effect.

5. In Giglio v. United States, 405 u.s. 150, 153 (1972), the United States Supreme Court recognized that the "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice." This result flowed from the Supreme Court's recognition that a prosecutor is:

the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore; in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v, United States, 295 u.s. 78, 88 (1935). The prosecution has a duty to ale~t the court, the defense, and the jury when a State's witness gives false testimony, Napue v. Illinois, 360

U.S. 264 (1959). The prosecutor must refrain from the knowing deception of either the court or the jury during a criminal trial. Moone~ v, Holohan. Similarly, intentional sandbagging of

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the defense in order to gain a strategic advantage is not permitted. Accordingly, the Supreme Court concluded that on the basis of Mooney the Fourteenth Amendment due process was implicated where the prosecution deliberately misled the defense. Gray v, Netherland, 518 u.s. 152, 165 (1996). "Truth is critical in the operation of our judicial system...." Florida Bar v, Feinberg, 760 So.2d 933 (Fla. 2000). The state "may not subvert the truth-seeking function of the trial by obtaining a conviction or sentence based on deliberate obfuscation of relevant facts." Garcia v. State, 622 So.2d 1325, 1331 (Fla. 1993). A prosecutor is prohibited from knowingly relying upon false impressions to obtain a conviction. Alcorta v. Texas, 355 u.s. 28 (1957).

6. In cases "involving knowing use of false evidence the defendant's conviction must be set aside if the falsity could in any reasonable likelihood have affected the jury's verdict." United States v, Bagley, 473 U.S. at 678, Quoting United States

v. Agurs, 427 u.s. at 102, (emphasis added). If there is "any reasonable likelihood" that uncorrected false and/or misleading argument .ffected the jury's determination, a new trial is warranted. Accordingly, if the prosecutor intentionally or knowingly engages in deceptive practices or presents false or misleading evidence or argument in order to obtain a conviction or sentence of death, due process is violated and the conviction and/or death sentence must be set aside unless the error is

sworn statement, the due process guarantee set forth in Giglio and the other cases Set forth above was violated by the State at Mr. Tompkins' trial when the prosecutor instructed Mr. Turco to add "a pocketbookH to his story when testifying against Mr. Tompkins.

This sworn statement

from Mr. Turco has just been disclosed on October 30, 2008. It was not previously available to Mr. Tompkins. This statement reveals that Mr. Tompkins' Sixth and Fourteenth Amendment rights were violated by the State's conduct here, knowing presentation of false or misleading testimony.

The failure to

disclose this exculpatory information at trial further violated Mr. Tompkins' rights under Brady v. Maryland, 373 u.s. 83 (1963), and its progeny_ The prejudice flowing from this failure to disclose must be evaluated cumulatively with the prejudice flowing from the numerous other failures to disclose that have already been presented.

Under the circumstances here, Mr. Tompkins

seeks an opportunity to present his Sixth and Fourteenth Amendment claims in a Rule 3.851 motion. Mr. Tompkins also seeks a fair opportunity to be heard on his claims. Clearly, the circuit court does not have jurisdiction to entertain such a motion.

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Further, Mr. Tompkins needs some time to prepare the claim, a motion for judicial disqualification for the reasons set forth in his Initial Brief in Case No. SC08-992, and to obtain the proper verifications from Mr. Tompkins who is located a days travel

away_

WHEREFORE, Mr. Tompkins respectfully requests that this Court relinquish jurisdiction in order to permit Mr. Tompkins to present his claims premised upon the Sixth and Fourteenth Amendments outlined above in a Rule 3.851 motion to vacate his judgment and sentence of death.

I HEREBY CERTIFY that true and correct copies of the foregoing motion has been furnished by first class mail, postage prepaid, to Scott Browne; Assistant Attorney General, Department of Legal Affairs, 3507 Frontage Road, Suite 200, Tampa, FL 33607 on November 3, 2008.